President William Ruto’s UDA party scored yet another victory after the High Court in Kakamega upheld the election of Malava MP David Ndakwa during the November by-election last year.
Justice Stephen Mbugi dismissed a petition that had sought to overturn Ndakwa’s victory, citing insufficient evidence.
The petition was filed by voters John Karakacha and Nancy Wanakacha on behalf of Seth Panyako who lost to Ndakwa. Panyako ran on the DAP-K ticket.
The petitioners had asked the court to nullify Ndakwa’s election on grounds of widespread bribery and undue influence of voters. They also listed violence, Ndakwa’s ineligibility to run in the by-election and non-accreditation and admission of agents of candidates to polling stations among the grounds for nullification of the vote.
They argued that Ndakwa did not qualify to contest the parliamentary seat before first resigning as an MCA in the Kakamega county assembly. They said the election was not free, fair and accountable due to voter bribery and incidents of violence witnessed.
In his ruling on Friday, Justice Mbugi said the law does not expressly prohibit a sitting MCA from contesting a parliamentary seat without first vacating office.
Unlike provisions that apply in a general election, the judge said, section 43(6) of the Elections Act does not clearly state that an MCA must resign before vying for another elective seat in a by-election.
“The court could not impose requirements that are not expressly provided for in law. In my opinion, if Parliament intended that an MCA seeking election as MP should first resign, it would have stated so expressly,” Mbugi ruled.
The petitioners had sued the Independent Electoral and Boundaries Commission , Malava Returning Officer and Ndakwa as first, second and third respondents respectively. National Commission on Human Rights, Election Observers Group and Panyako were named as interested parties.
Ndakwa’s supporters burst into jubilation chanting victory songs outside the precincts of the court after the ruling. Ndakwa said the will of the people of Malava had prevailed.
Ndakwa had resigned as the leader of the minority in the Kakamega County Assembly to contest the Malava parliamentary seat following the death of former MP Malulu Injendi.
Panyako said he was not convinced by the judgement, saying, “I don’t trust the judicial system anymore.”
He said violence was reported in four of the seven polling stations where he disputed results, suggesting the irregularities could have influenced the outcome because of the slim margin of victory.
Panyako’s lawyer, Senior Counsel Nelson Havi described the verdict as a “miscarriage of justice” He said that he would be advising his client to appeal the decision.
“This is a bad indicator. It’s a travesty. It means anybody with the wherewithal to deploy violence, use bribery and use state machinery will be declared winner,” he said.
“What would be the purpose of us going to elections when the essential elements of a free and fair election cannot be guaranteed? It’s a precursor of what will happen in 2027,” he added.
Havi insisted that available evidence of violence was sufficient to interfere with the electoral process and wondered how the judge found it insufficient to have affected the outcome.
The petitioners presented 13 witnesses during the hearing. IEBC announced Ndakwa winne on November 28, 2025 after he garnered 21,564 votes, against Panyako’s 20,210 votes. Wilberforce Indai of the Kenya Moja party came third with 626 votes.
